A serious question mark is now emerging over the role of the Upper House, Rajya Sabha. The BJP-led NDA government has been circumventing the Rajya Sabha or the House of States for the last two years.

The situation arose after couple of legislations faced trouble in the Upper House where the combined opposition enjoys majority. The government, having an overwhelming majority in the directly elected Lok Sabha, came up with an idea of doing away with the Rajya Sabha. The Upper House of the bicameral parliament is indirectly elected by the legislators of the states.

The government decided to declare bills as Money Bills which in its calculation may face hurdles in the Rajya Sabha. A bill introduced in the Lok Sabha as Money Bill does not require approval of the Upper House. In this way, the Rajya Sabha can be bypassed.

Under Article 110 (1) of the Constitution, a bill is deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters namely:

The imposition, abolition, remission, alteration or regulation of any tax,

The regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India,

The custody of the Consolidated Fund of India or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund,

The appropriation of moneys out of the Consolidated Fund of India,

The declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure,

The receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State, or

Any matter incidental to any of the matters specified in sub clauses (a) to (f).

A bill is not deemed a Money Bill by reasons only that is provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licenses or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.

If any question arises whether a bill is a Money Bill or not, the decision of the Speaker of the House of the peoples thereon shall be final, says the Constitution.

The government's effort to bypass or circumvent the Upper House for pushing its legislative agenda had been going on for some time. In the 2015 budget session, it became abundantly clear that the government's strong intent of passing an amendment to the United Progress Alliance's Land Acquisition Act — which the Bharatiya Janata Party sitting in opposition had supported in 2013 — was not making any headway with the Congress and others, particularly the Left. At that time, the ruling party, its allies and their spokespersons started threatening that they will take the "joint session" route for contentious legislations.

Finance Minister Arun Jaitley, who is most prominent articulator of government actions and defender of the BJP faith, went to the extent of saying that this was the only way for government to function and fulfill its electoral promises because democracy was being "subverted by the tyranny of the unelectable leaders and their parties."

It is worth mentioning here that Jaitley was rejected by the people in the 2014 general elections. He was also the leader of the opposition in the Rajya Sabha during the UPA II government. He has never won a direct election and has been in the parliament representing the Upper House.

Threat to convene a joint session for pushing contentious legislation could not be actualised because the desired route was only possible under exceptional circumstances when all other routes had failed. The Constitution is very clear on this point.

The government abandoned the move and instead resorted to put to use its huge majority in the Lok Sabha. Lok Sabha Speaker Sumitra Mahajan's absolute powers were deployed to achieve some of the legislative goals of the government.

In the spring of 2016 towards the end of the budget session, the Finance Minister "inserted other laws into the budget" and brought up in the Upper House the Black Money Bill in an unusual manner. The opposition protested contending that the government was trying to pass off "difficult legislations" as Money Bills.

In full knowledge that this category of bills cannot be amended in the Rajya Sabha, the government resorted to take the route. The Upper House can only recommend amendments in the Money Bills to Lok Sabha within fourteen days from the date of their receipt. It is up to the Lok Sabha to accept or reject any or all the recommendations of the Rajya Sabha, thus ensuring a smooth and convenient passage of those bills which were difficult to get approval of both the houses without taking the opposition on board.

The government declared the Aadhar Bill a Money Bill. It was introduced in the Lower House and was passed there. It was taken up in the Rajya Sabha but discussion or amendments remained infructuous in the light of it being a Money Bill. There are several criteria under Article 110 which qualifies a bill as a Money Bill. Aadhar Bill did not fulfill any of the criteria, but since the Speaker’s decision is final, the opposition could do very little.

Constitutional experts like the former Lok Sabha Secretary General P.D.T Achary have come down strongly on the government’s move. Achary said, "Rajya Sabha should not be deprived of its legitimate right to legislate through stratagems such as certifying any bill as Money Bill." The issue is before the Supreme Court.

It is worth recalling here debates in the Constituent Assembly where it was decided to have a bicameral system for country's parliamentary democracy with the argument that it was better to "delay legislation which might be the outcome of passions of the moment until passions have subsided and calm consideration could be bestowed."

It is abundantly clear that by circumventing the Upper House, the government is avoiding a reasoned debate. It is showing an utter disregard for the system which was put together by the Constitution makers.

Even in the just concluded budget session of parliament, the government got some of important bills by getting them termed as Money Bills. An interesting development took place that clearly displays the intent of the government.

A war of words over a long-standing convention in the Rajya Sabha broke out on 31 March this year between the treasury and opposition benches when Leader of the Opposition in the Upper House Ghulam Nabi Azad accused the Modi government of surreptitiously passing Bills in the absence of MPs.

While Minister of State for Parliamentary Affairs Mukhtar Abbas Naqvi defended the government saying that treasury bench MPs were present and it could not be held responsible for opposition MPs was technically correct, yet the government's view was a clear breach of convention that has been followed for decades.

Friday afternoons have been reserved for private member business and official business was usually never taken up after the private business. Attendance on Friday afternoons, therefore, has usually been thin.

Three weeks back, the Modi government moved away from the till now observed convention. The government, which is in minority in the upper house, took advantage of the depleted Opposition benches and pushed through the Enemy Property Bill in the house on a Friday afternoon after the private member business was over.

The government had agreed in the business advisory committee (BAC) that the said bill would come up for discussion only after a consensus had been reached among all the political parties.

The government chose to go back on its own assurance and decided to break a convention instead of taking an arduous path of convincing the opposition, as is the practice in a parliamentary democracy. It first ensured that its MPs were present and then took a convenient path for pushing a legislation.

The opposition was possibly caught napping on that day and therefor it was present in strength in the Upper House on 31 March so that the government did not succeed in getting Factories (Amendment) Bill 2016 passed.

Undermining the Constitution may prove beneficial to the present government in the short term but this approach is going to cause irreparable damage to democracy in long run.

People

Satish Misra has done PhD from Humboldt University, Berlin, Germany in International Affairs. He has done MA (Western History) from Lucknow University. Before joining ORF he has worked with various English Newspapers and Magazines as Assistant Editor, Designation: Chief of Bureau, Special Correspondent, Campus Reporter >>